Judge Says Government Plan Doesn't Do Enough to Protect San Pedro River, Endangered Species

TUCSON, Ariz. – A federal judge has rejected the latest plan by the U.S. Army and U.S. Fish and Wildlife Service aimed at preventing damage to the San Pedro River and its endangered species from groundwater pumping to serve Fort Huachuca and the Fort’s population in surrounding areas. In a ruling responding to a lawsuit by the Center for Biological Diversity and Maricopa Audubon Society, a federal judge said the Army and the Fish and Wildlife Service relied on a “legally flawed” plan that didn’t protect the San Pedro River and failed to properly analyze groundwater pumping’s effect on imperiled species such as the southwestern willow flycatcher and a plant called the Huachuca water umbel.

The Army and the Fish and Wildlife Service will now have to produce a new plan to protect the river from the Fort's deficit groundwater pumping.

The San Pedro is the Southwest's last surviving undammed desert river, threatened by local groundwater pumping that intercepts water that would ordinarily move from the aquifer seeping through the riverbanks to provide surface flow to the river. The annual local groundwater deficit, or overdraft, of the aquifer is now approximately 6,000 acre-feet per year and growing.

“This is a great victory for San Pedro River protection,” said the Center's Robin Silver. “It is time to acknowledge that the area is too fragile to support all of Fort Huachuca's missions, most of which can be accomplished elsewhere with no loss of defense capabilities.”

“What a great day for the millions of neotropical songbirds that are passing through the area during their spring migration,” said Maricopa Audubon President Mark Larson. “The San Pedro is the Southwest's last surviving stopover for these songbirds.”

In the decision released this weekend, the court ruled:

“…FWS committed legal error in its BiOp [Biological Opinion] by failing to analyze the effects of the Fort’s actions on recovery, relying on uncertain and unspecific mitigation measures, and failing to articulate a rational connection between its findings in the BiOp and its no jeopardy and no adverse modification conclusions. The Army’s reliance on a legally flawed BiOp is arbitrary and capricious. The Army therefore has violated its § 7 substantive duty to ensure that its proposed ongoing and future operations do not jeopardize the continued existence of the umbel or flycatcher or result in the destruction or adverse modification of their designated critical habitat.”

This is the second rejection of an inadequate and illegal plan to protect the San Pedro River. In 2002, the court similarly rejected the Fort's plan after a lawsuit by the Center and Maricopa Audubon. Another plan was withdrawn by the Army in 2006 during an ongoing lawsuit also brought by the Center and Maricopa Audubon. Earthjustice provided the legal services in both of these cases, as well as the current case.

The court's most recent decision follows a study released by the Center in January showing that the adverse effects of groundwater pumping by the Fort and the city of Sierra Vista are moving perilously close to the San Pedro, and water levels are declining near the river at the Fort's eastern border.

“The San Pedro River is a lush corridor of life cutting through the desert Southwest and teeming with wildlife and birds, but groundwater pumping is drying it up,” said Earthjustice attorney McCrystie Adams, who represented the two conservation groups in the case. “The federal government needs to make sure that pumping is reduced to levels that keeps this unique wildlife corridor alive.”

In 2003, the city of Sierra Vista and Fort Huachuca-led Upper San Pedro Partnership promised “to eliminate deficit groundwater pumping by 2011.” Based on this promise, Sen. John McCain (R-Ariz.) supported a congressional legislative rider by former Rep. Rick Renzi (R-Ariz.) to shield Fort Huachuca from full responsibility for its negative impacts on the San Pedro and to protect the Fort in the 2005 Base Realignment and Closure round. But even with this legislative shield, the Fort has not come up with a defensible plan to protect the San Pedro from the massive local groundwater pumping upon which the Fort depends.